Family Feud? Courts May Appoint An Independent Guardian or Conservator

On July 9, 2012, the Minnesota Court of Appeals issued an unpublished decision (In re the Guardianship and/or Conservatorship of Lois L. Rothfusz) addressing (among other things) the issue of who should be guardian/conservator when there are feuding family members.  In keeping with precedent (In re the Guardianship of Wells, 733 N.W.2d 506 (Minn. App. 2007); In re Conservatorship of Edwards, 390 N.W.2d 300 (Minn. App. 1986), the Court affirmed the trial court’s decision to appoint a neutral professional as successor guardian/conservator, rather than one of the ward’s daughters, when there was significant acrimony between the children.  The full decision of In re: Guardianship and/or Conservatorship of Lois L. Rothfusz can be found here.  Although family members have statutory priority over a professional guardian, the court has discretion to decline to appoint someone with priority if it is in the best interest of the ward to do so.  See Minn. Stat. 524.5-309 (a) (2011) (priority for guardians) and Minn. Stat. 524.5-413(a) (2011) (priority for conservators).  As the Court stated, “the ward’s best interests are the decisive factor and the court’s paramount concern when deciding who to appoint as guardian and conservator of a ward.”  

Who has statutory priority to be a guardian or conservator in Minnesota?

What if more than one person petitions the court to be guardian and/or conservator for a ward in Minnesota?    Does one person have priority over another?  How does the Court decide who should be guardian?

Minnesota Statute 524.5-309 (for guardians) and Minnesota Statute 524.5-413 (for conservators) provide guidance on these questions and sets forth the statutory priority scheme.  They  provides that, as long as a person is otherwise qualified to serve as guardian or conservator, there is priority in the following order:

  • a current guardian or conservator (other than emergency or temporary guardian)
  • a person named under a current health care directive (as long as there are no restrictions contained therein) or durable power of attorney
  • a spouse or the written nominee of a deceased spouse
  • an adult child
  • a parent or the written nominee of a deceased parent
  • an adult who has lived with the proposed ward for at least six months before the filing of the petition
  • an adult who is related to the proposed ward by blood, adoption or marriage
  • any other adult or professional guardian.

So if you are low down on the priority scale (say for example, if you are a brother-in-law or a friend of the proposed ward and an adult child of the proposed ward wants to be guardian) does that mean you don’t have a chance of being appointed as guardian?  No.  Minn. Stat 524.5-309 and Minn. Stat. 524.5-413 require  the court to appoint the best qualified in that case.

What about if tow individuals with differing priority levels want to be guardian?  Does the court automatically pick the one with higher priority?  No.  Minn. Stat. 524.5-309 and Minn. Stat. 524.5-413 allow the court to appoint someone with lower (or no) priority, if the Court finds it is in the best interest of the Respondent.

If you have questions about priority for appointment as guardian or conservator in Minnesota, or any other guardianship questions, please contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services, LLC. 

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